Five 9/11 Suspects Being Held at Gitmo to Be Tried in New York

Updated: The accused mastermind of the Sept. 11 attacks and four alleged co-conspirators will be tried in federal court in New York City just blocks from the site of the World Trade Center.

Attorney General Eric Holder announced the decision this morning, according to the DOJ which posted the announcement on its site. The most high-profile suspect to be tried in the city is the accused mastermind of the attacks, Khalid Shaikh Mohammed. He was waterboarded 183 times during interrogations in 2003, an issue that could surface during his trial, according to the Associated Press.

By coincidence, the attorney general’s announcement was released just as an ABA conference being held only a few blocks from the Justice Department’s headquarters was about halfway through a panel about the status of military commissions. The panel was part of the 19th Annual Review of the Field of National Security Law, a program co-sponsored by the Standing Committee on Law and National Security and in conjunction with the law schools at Duke University and the University of Virginia.

Panelists responded to the announcement in the course of their presentations.

Robin Jacobsohn, deputy general counsel in the U.S. Department of Defense, emphasized the administration’s position that it should have access to both military commissions and Article III federal courts as possible venues for trying individuals on charges relating to suspected terrorist acts. She also said the Military Commissions Act that was recently signed into law by President Obama has strengthened the procedural safeguards for commissions.

Referring to commissions and the federal courts, Jacobsohn said, “The fact that there are two systems doesn’t make one of them inferior. They’re just different. There is value in both systems.”

But two panelists from organizations outside the government voiced more skepticism about the viability and need for military commissions.

“Commissions are second-class justice, although at least now they’re a better form of second-class justice” after the enactment of the Military Commissions Act, said Jonathan Hafetz, an attorney in the National Security Project for the American Civil Liberties Union.

And Deborah Pearlstein, a visiting scholar at the Program in Law and Public Affairs at Princeton University, said that, even with improved procedural protections, there is a serious credibility gap for military commissions in many segments of the legal and policy community. Commissions have been “a legal failure and a policy failure,” she said. “The bar is very high for them now.”

All five suspects are currently being held at Guantanamo. The decision to try their cases in New York was made as part of plans to close the Guantanamo facility. As many as 40 of the detainees will likely be tried in military commissions or in federal courts. Possible federal trial locations include Washington, D.C.; Alexandria, Va.; and another courthouse in New York City. About 90 other detainees will be released to other countries.

That leaves up to 75 detainees at Guantanamo who could continue to be held under the laws of war because they are considered too dangerous to release but cannot be prosecuted because of evidentiary issues and limits on the use of classified material, the Washington Post says.

Another high-profile terrorism suspect being held at Guantanamo is Abd al-Rahim al-Nashiri, accused in the bombing of the USS Cole off the coast of Yemen. He will be tried by a military commission, officials told the Post and AP.

ABA Journal editor James Podgers contributed to this report from Washington, D.C.

Last updated at 4:28 p.m. to add reaction from the national security law conference.